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Law as a Means to an End: Threat to the Rule of Law (Law in Context) 1st Edition

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ISBN-13: 978-0521689670
ISBN-10: 0521689678
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Editorial Reviews


"Brian Tamanaha's Law as a Means to an End is something very rare--a book that has the potential to change thinking about the law in fundamental ways. The book accomplishes three substantial tasks with admirable brevity, erudition, and clarity. First, it traces the history of 'legal instrumentalism' in Nineteenth and Twentieth century jurisprudence and legal practice--a compelling story that illuminates the origins of our most basic assumptions about law. Second, it traces the pervasive influence of instrumentalist thinking in contemporary legal thought--acutely diagnosing the intellectual underpinnings of phenomena as diverse as 'cause lawyering' and the 'law and economics movement' in the legal academy. Third, it makes a compelling argument that the rise of instrumentalism has a fundamentally corrosive effect on the rule of law. This is not just an important book--it is THE important book of legal theory for this decade. Law as a Means to an End is superb."
--Lawrence Solum, John E. Cribbet Professor of Law, University of Illinois College of Law

"The great scholar Grant Gilmore once asked in the title of a fascinating book, 'Is Contract Dead?' and went on to answer, 'yes.' Brian Tamanaha does him one better. In this book he asks, 'Is Law Dead?' His answer: 'almost.' Law, he reports, is in danger of succumbing to instrumentalism and as such losing its vitality. Much of modern legal scholarship seeks to make law a branch of applied economics. This book pushes against that movement, as well as many other related "realist" movements. Whether one agrees or disagrees with Tamanaha, he or she will be wiser after having read this fine book."
--Malcolm M. Feeley, Claire Sanders Clements Dean's Professor, Boalt Hall School of Law, University of California at Berkeley

"Brian Tamanaha sounds a firebell in the night. He shows how the most progressive modern approaches to law, by undermining beliefs in its objectivity and formal rationality, and its rootedness in natural or customary standards of right conduct, have fatally undermined its claims to restrain power-seeking or serve the common good. Law is now seen simply as an instrument -- not as a limit on greed and power, but a means by which interests pursue their own selfish ends. And it's not only interest-groups and their lawyers, but judges and jurists, who have signed on to an instrumentalism that challenges the very ideas of the rule of law and the public interest. Tamanaha is not a nostalgic romantic. He does not think the old days can or should be recovered. He does not tell us what to do. But he illuminates our predicament with succinct history, clear-headed observation, and unflinchingly bleak analysis."
--Robert W. Gordon, Chancellor Kent Professor of Law and Legal History, Yale University

"Taken as a whole, Tamanaha's book makes a significant contribution to the scholarly understanding of the rule of law in American jurisprudence....Tamanaha's book provides a superb overview of the emergence of instrumentalism as the primary perspective on law in contemporary America. The evidence he marshals to support this conclusion is impressive, leaving little doubt as to the validity of his assertions...Law as a Means to an End is an outstanding treatment of an important scholarly question with profound normative implications for American society."
--Paul M. Collins, The Law and Politics Book Review

"...In Law as a Means to an End, Tamanaha argues that the instrumental view of law, coupled with a general breakdown in our ability to reach a cencensus about which ends law should serve, poses a serious risk to the rule of law..."
--Robert T. Miller, Villanova University School of law, FIRST THINGS

Book Description

Drawing upon legal history, legal theory, and legal sociology, this book presents an intellectual history of the US legal culture which elaborates on the various developments that have led to and structure the present worrisome legal-political situation.

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Product Details

  • Series: Law in Context
  • Paperback: 268 pages
  • Publisher: Cambridge University Press; 1 edition (October 2, 2006)
  • Language: English
  • ISBN-10: 0521689678
  • ISBN-13: 978-0521689670
  • Product Dimensions: 6 x 0.6 x 9 inches
  • Shipping Weight: 1 pounds (View shipping rates and policies)
  • Average Customer Review: 5.0 out of 5 stars  See all reviews (3 customer reviews)
  • Amazon Best Sellers Rank: #1,035,871 in Books (See Top 100 in Books)

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31 of 31 people found the following review helpful By Zeldock on December 31, 2006
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Professor Tamanaha makes a very important point here about the pragmatic theory of judging. Pragmatic judging -- an approach advocated most eloquently by Judge Richard Posner in a number of books and other writings -- means in essence that, when faced with an issue that is not clearly resolved by the existing law, the judge should resolve the issue in the way that he or she thinks makes the most sense, all things considered, for the parties and society. This approach obviously gives judges a lot of leeway, since "what makes the most sense" is something that no two people are likely to agree upon. Posner thinks that that is OK because judges do it anyway, and so we might as well be up front about it.

Tamanaha's response is twofold. First, he argues that Posner exaggerates the extent to which judges typically resolve issues according to their private biases instead of what legal reasoning points to as being correct (or most nearly correct). Second, Tamanaha argues that there is a major difference between a judge who says, "I can and should resolve issues based on what I think makes the most sense *except when* the law *clearly resolves* the issue," and a judge who says, "I can and should resolve issues based on what I think makes the most sense *only when* the law *truly does not resolve* the issue." In other words, the pragmatic judge gives himself free rein whenever he can, while the traditional judge gives himself free rein only when there's really no other choice.

This argument is most clearly laid out in the last chapter of "Law as a Means to an End." If you're familiar with the terms of the debate, you could read that chapter by itself with benefit.
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9 of 9 people found the following review helpful By Thomas on June 12, 2009
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I'm a legal scholar interested in this area though my usual area is corporate and commercial law. This is an excellent book. Although I gather BT has refined his views somewhat since he wrote this, it is I think a very useful and fresh way to look at the course of American jurisprudence, and based on other research I have done, accurate as well. BT has a crisp and unpretentious writing style and his arguments are straightforward. I have not quite finished the book, but based on first 2/3 I am already very glad I picked it up. He is admirably even-handed. At a few points one can tell he leans against more conservative views such as originalism and law & economics, but he does not seem to let this influence his judgments.

I suppose one could criticize that the book could have been more ambitious theoretically, but given that so much legal scholarship these days is failed theory, I am glad it is pitched as it is. The book weighs in at 230+ pages, but would be longer than that in print you could read without glasses. The Kindle edition does not have an active TOC which is unfortunate.

The narrative qualities of the book make it a good read. I think the story it tells is almost tragic, but it is compelling. I wish there had been a book like this to read 25 years ago when I was in law school. It would have made the theoretical muddle I found so frustrating then more understandable, at least in the sense I would have understood how things got to be the mess they were. Very highly recommended.
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By kntnwms3 on March 3, 2015
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Brian Tamanaha has captured in one book the essence of postmodern judicial activism. The United States Supreme Court certainly reached the correct result in Brown v. Bd. of Education. But that decision was a turning point of sorts for liberal jurists who saw the ability of judicial opinions to bring about societal change, and to do so without being bound by the rule of law or the dictates of reason. No, in future cases they could decide in advance what outcomes they wanted to achieve, and then write their opinions in such a way as to justify their predetermined outcomes.The ends now justify the means. In this sense, reason, or, rather, the appearance of reason has become a tool, a hammer-a technique-to advance the political power of the Court. Having first implicitly redefined the "judicial power" conferred on federal and state courts by their respective constitutions, the courts are now free to do as they please, and there is no one to stop them. This is all being done to bring about the reconstitution of American society which intellectuals everywhere believe is sick, unequal, and, therefore, unjust. Now, the state supreme courts have become far more activist in almost every way. Federal and state judges are morphing from decision makers, previously bound by the rule of law, into life changers. For those who believe that ours is a government of laws and not of men, the time for abandoning that belief is now. Tamanaha recognizes that this is a potential problem, but it is worse than he admits.Read more ›
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